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Nebraska Workers' Compensation Legal Library


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48-121. Compensation; schedule; total, partial, and temporary disability; injury to specific parts of the body; amounts and duration of payments.

The following schedule of compensation is hereby established for injuries resulting in disability:

(1) For total disability, the compensation during such disability shall be sixty-six and two-thirds percent of the wages received at the time of injury, but such compensation shall not be more than the maximum weekly income benefit specified in section 48-121.01 nor less than the minimum weekly income benefit specified in section 48-121.01, except that if at the time of injury the employee receives wages of less than the minimum weekly income benefit specified in section 48-121.01, then he or she shall receive the full amount of such wages per week as compensation. Nothing in this subdivision shall require payment of compensation after disability shall cease;

(2) For disability partial in character, except the particular cases mentioned in subdivision (3) of this section, the compensation shall be sixty-six and two-thirds percent of the difference between the wages received at the time of the injury and the earning power of the employee thereafter, but such compensation shall not be more than the maximum weekly income benefit specified in section 48-121.01. This compensation shall be paid during the period of such partial disability but not beyond three hundred weeks. Should total disability be followed by partial disability, the period of three hundred weeks mentioned in this subdivision shall be reduced by the number of weeks during which compensation was paid for such total disability;

(3) For disability resulting from permanent injury of the classes listed in this subdivision, the compensation shall be in addition to the amount paid for temporary disability, except that the compensation for temporary disability shall cease as soon as the extent of the permanent disability is ascertainable. For disability resulting from permanent injury of the following classes, compensation shall be: For the loss of a thumb, sixty-six and two-thirds percent of daily wages during sixty weeks. For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of daily wages during thirty-five weeks. For the loss of a second finger, sixty-six and two-thirds percent of daily wages during thirty weeks. For the loss of a third finger, sixty-six and two-thirds percent of daily wages during twenty weeks. For the loss of a fourth finger, commonly called the little finger, sixty-six and two-thirds percent of daily wages during fifteen weeks. The loss of the first phalange of the thumb or of any finger shall be considered to be equal to the loss of one-half of such thumb or finger and compensation shall be for one-half of the periods of time above specified, and the compensation for the loss of one-half of the first phalange shall be for one-fourth of the periods of time above specified. The loss of more than one phalange shall be considered as the loss of the entire finger or thumb, except that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. For the loss of a great toe, sixty-six and two-thirds percent of daily wages during thirty weeks. For the loss of one of the toes other than the great toe, sixty-six and two-thirds percent of daily wages during ten weeks. The loss of the first phalange of any toe shall be considered equal to the loss of one-half of such toe, and compensation shall be for one-half of the periods of time above specified. The loss of more than one phalange shall be considered as the loss of the entire toe. For the loss of a hand, sixty-six and two-thirds percent of daily wages during one hundred seventy-five weeks. For the loss of an arm, sixty-six and two-thirds percent of daily wages during two hundred twenty-five weeks. For the loss of a foot, sixty-six and two-thirds percent of daily wages during one hundred fifty weeks. For the loss of a leg, sixty-six and two-thirds percent of daily wages during two hundred fifteen weeks. For the loss of an eye, sixty-six and two-thirds percent of daily wages during one hundred twenty-five weeks. For the loss of an ear, sixty-six and two-thirds percent of daily wages during twenty-five weeks. For the loss of hearing in one ear, sixty-six and two-thirds percent of daily wages during fifty weeks. For the loss of the nose, sixty-six and two-thirds percent of daily wages during fifty weeks.

In any case in which there is a loss or loss of use of more than one member or parts of more than one member set forth in this subdivision, but not amounting to total and permanent disability, compensation benefits shall be paid for the loss or loss of use of each such member or part thereof, with the periods of benefits to run consecutively. The total loss or permanent total loss of use of both hands, or both arms, or both feet, or both legs, or both eyes, or hearing in both ears, or of any two thereof, in one accident, shall constitute total and permanent disability and be compensated for according to subdivision (1) of this section. In all other cases involving a loss or loss of use of both hands, both arms, both feet, both legs, both eyes, or hearing in both ears, or of any two thereof, total and permanent disability shall be determined in accordance with the facts. Amputation between the elbow and the wrist shall be considered as the equivalent of the loss of a hand, and amputation between the knee and the ankle shall be considered as the equivalent of the loss of a foot. Amputation at or above the elbow shall be considered as the loss of an arm, and amputation at or above the knee shall be considered as the loss of a leg. Permanent total loss of the use of a finger, hand, arm, foot, leg, or eye shall be considered as the equivalent of the loss of such finger, hand, arm, foot, leg, or eye. In all cases involving a permanent partial loss of the use or function of any of the members mentioned in this subdivision, the compensation shall bear such relation to the amounts named in such subdivision as the disabilities bear to those produced by the injuries named therein.

If, in the compensation court's discretion, compensation benefits payable for a loss or loss of use of more than one member or parts of more than one member set forth in this subdivision, resulting from the same accident or illness, do not adequately compensate the employee for such loss or loss of use and such loss or loss of use results in at least a thirty percent loss of earning capacity, the compensation court shall, upon request of the employee, determine the employee's loss of earning capacity consistent with the process for such determination under subdivision (1) or (2) of this section, and in such a case the employee shall not be entitled to compensation under this subdivision.

If the employer and the employee are unable to agree upon the amount of compensation to be paid in cases not covered by the schedule, the amount of compensation shall be settled according to sections 48-173 to 48-185. Compensation under this subdivision shall not be more than the maximum weekly income benefit specified in section 48-121.01 nor less than the minimum weekly income benefit specified in section 48-121.01, except that if at the time of the injury the employee received wages of less than the minimum weekly income benefit specified in section 48-121.01, then he or she shall receive the full amount of such wages per week as compensation;

(4) For disability resulting from permanent disability, if immediately prior to the accident the rate of wages was fixed by the day or hour, or by the output of the employee, the weekly wages shall be taken to be computed upon the basis of a workweek of a minimum of five days, if the wages are paid by the day, or upon the basis of a workweek of a minimum of forty hours, if the wages are paid by the hour, or upon the basis of a workweek of a minimum of five days or forty hours, whichever results in the higher weekly wage, if the wages are based on the output of the employee; and

(5) The employee shall be entitled to compensation from his or her employer for temporary disability while undergoing physical or medical rehabilitation and while undergoing vocational rehabilitation whether such vocational rehabilitation is voluntarily offered by the employer and accepted by the employee or is ordered by the Nebraska Workers' Compensation Court or any judge of the compensation court.
Source

* Laws 1913, c. 198, § 21, p. 586;
* R.S.1913, § 3662;
* Laws 1917, c. 85, § 7, p. 202;
* Laws 1919, c. 91, § 2, p. 228;
* Laws 1921, c. 122, § 1, p. 521;
* C.S.1922, § 3044;
* C.S.1929, § 48-121;
* Laws 1935, c. 57, § 41, p. 210;
* C.S.Supp.,1941, § 48-121;
* R.S.1943, § 48-121;
* Laws 1945, c. 112, § 1, p. 357;
* Laws 1949, c. 160, § 1, p. 403;
* Laws 1951, c. 152, § 1, p. 617;
* Laws 1953, c. 162, § 1, p. 506;
* Laws 1955, c. 186, § 1, p. 527;
* Laws 1957, c. 203, § 1, p. 710;
* Laws 1957, c. 204, § 1, p. 716;
* Laws 1959, c. 223, § 1, p. 784;
* Laws 1963, c. 284, § 1, p. 847;
* Laws 1963, c. 285, § 1, p. 854;
* Laws 1965, c. 279, § 1, p. 800;
* Laws 1967, c. 288, § 1, p. 783;
* Laws 1969, c. 388, § 3, p. 1360;
* Laws 1969, c. 393, § 1, p. 1378;
* Laws 1971, LB 320, § 1;
* Laws 1973, LB 193, § 1;
* Laws 1974, LB 807, § 1;
* Laws 1974, LB 808, § 1;
* Laws 1974, LB 710, § 1;
* Laws 1975, LB 198, § 1;
* Laws 1977, LB 275, § 1;
* Laws 1978, LB 446, § 1;
* Laws 1979, LB 114, § 1;
* Laws 1979, LB 358, § 1;
* Laws 1983, LB 158, § 1;
* Laws 1985, LB 608, § 1;
* Laws 1993, LB 757, § 4;
* Laws 1999, LB 216, § 5;
* Laws 2007, LB588, § 4.

Annotations
1. Permanent total disability
2. Temporary total disability
3. Partial disability
4. Permanent injury, specific classes
5. Miscellaneous
1. Permanent total disability

* Total disability in the context of the workers' compensation law does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform, or any other kind of work which a person of his or her mentality and attainments could do. Mata v. Western Valley Packing, 236 Neb. 584, 462 N.W.2d 869 (1990).

* An employee's return to work does not in every case terminate an employee's total disability from a work-related injury. Pursuant to subsections (1) and (2) of this section, an employee's disability is determined by the employee's diminution of employability or impairment of earning power or earning capacity, and is not necessarily determined by a physician's evaluation and assessment of the employee's loss of bodily function. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).

* Total disability in the context of the workers' compensation law does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform, or any other kind of work which a person of his or her mentality and attainments could do. Luehring v. Tibbs Constr. Co., 235 Neb. 883, 457 N.W.2d 815 (1990).

* Whether a partial loss or loss of use of two members results in total and permanent disability is to be determined in accordance with the facts. Evidence shows that plaintiff was permanently totally disabled as a matter of law. Krijan v. Mainelli Constr. Co., 216 Neb. 186, 342 N.W.2d 662 (1984).

* An employee may be totally disabled but still able, on occasion, to obtain trivial employment. Craig v. American Community Stores, Inc., 205 Neb. 286, 287 N.W.2d 426 (1980).

* An employee who has permanent total disability from separate accidents is entitled to compensation out of the Second Injury Fund even though the injuries were schedule injuries. Camp v. Blount Bros. Corp., 195 Neb. 459, 238 N.W.2d 634 (1976).

* A claimant who sustains the loss of use of his right hand and a permanent partial loss of use of his right leg is entitled to compensation under subdivision (1) of this section for that proportion of the compensation allowed for total disability as the extent of the loss of the use of the two members bears to the total loss of such members. Wiekhorst v. Rural Electric Co., Inc., 186 Neb. 445, 183 N.W.2d 747 (1971).

* An employee may be totally disabled for all practical purposes and yet be able to obtain trivial occasional employment. Brockhaus v. L. E. Ball Constr. Co., 180 Neb. 737, 145 N.W.2d 341 (1966).

* Injury sustained to both feet under extraordinary conditions resulted in permanent total disability. Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965).

* Award of total disability, which resulted from conversion reaction following injury to back, was sustained. Haskett v. National Biscuit Co., 177 Neb. 915, 131 N.W.2d 597 (1964).

* An injury to fingers only on both hands does not authorize an award for total and permanent disability. Runyan v. Lockwood Graders, Inc., 176 Neb. 676, 127 N.W.2d 186 (1964).

* There may be total permanent disability even though there is only a permanent partial loss of bodily function. Nordahl v. Erickson, 174 Neb. 204, 116 N.W.2d 275 (1962).

* Workman was entitled to award for total disability from an occupational disease. Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 112 N.W.2d 531 (1961).

* Total disability is defined in terms of employability and earning capacity. Rapp v. Hale, 170 Neb. 620, 103 N.W.2d 851 (1960).

* Where employee was wholly unable to perform the duties of former employment or work of like nature, he was entitled to recover for permanent total disability. Tilghman v. Mills, 169 Neb. 665, 100 N.W.2d 739 (1960).

* Permanent total disability may result from unusual and extraordinary condition arising from injury to specific members. Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152 (1957).

* Total disability can only be held to exist where workman is unable to get, hold, or do any substantial amount of remunerative work, either in his previous occupation or in any other established field of employment for which he is fitted. Elliott v. Gooch Feed Mill Co., 147 Neb. 612, 24 N.W.2d 561 (1946).

* Workman was totally disabled when he was unable, on account of his injury, to perform or to obtain any substantial amount of labor, either in his particular line of work or in any other for which he would be fitted except for the injury. Elliott v. Gooch Feed Mill Co., 147 Neb. 309, 23 N.W.2d 262 (1946).

* Total disability exists only where workman is unable to get, hold, or do any substantial amount of remunerative work. Micek v. Omaha Steel Works, 136 Neb. 843, 287 N.W. 645 (1939).

* Where employee was totally disabled and was earning twenty-four dollars a week at time of injury, he was entitled to compensation after the first three hundred weeks and for the remainder of his life at the rate of forty-five percent of his weekly wage. Montgomery v. Milldale Farm & Live Stock Improvement Co., 124 Neb. 347, 246 N.W. 734 (1933).

* Where injury affected the whole nervous system in such manner as to disable claimant from doing any work, he was entitled to an award for total disability. Nebraska Nat. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557 (1924).

* Where injury wholly unfitted employee for the work he was engaged in at the time he received his injuries, an award for total disability was justified. Troxcil v. Morris & Co., 107 Neb. 817, 186 N.W. 978 (1922).

2. Temporary total disability

* A plain reading of subdivision (5) of this section requires that an employer must first offer, and the employee accept, vocational rehabilitation, or such rehabilitation must be court ordered before an employee becomes eligible for temporary total disability benefits. Bixenmann v. H. Kehm Constr., 267 Neb. 669, 676 N.W.2d 370 (2004).

* Under subdivision (5) of this section, an injured employee may not undertake rehabilitation on his or her own and receive temporary total disability benefits without approval from either the court or his or her former employer. Bixenmann v. H. Kehm Constr., 267 Neb. 669, 676 N.W.2d 370 (2004).

* Because benefits received during vocational rehabilitation under subsection (5) of this section may be ~temporary total disability~ benefits, a species of total disability benefits, and where such benefits are followed by ~partial disability~ benefits, pursuant to subsection (2) of this section, the 300-week period shall be reduced by the number of weeks during which compensation was paid for such total disability. Sheldon-Zimbelman v. Bryan Memorial Hosp., 258 Neb. 568, 604 N.W.2d 396 (2000).

* An employee awarded temporary total disability payments is entitled to suspension of a prior unrelated award for a permanent partial disability caused by a previous accident until the temporary total disability payments cease. Anderson v. Omaha Pub. Sch. Dist., 254 Neb. 1007, 581 N.W.2d 424 (1998).

* Under a plain reading of subsection (5) of this section, an employer must first offer, and the employee accept, vocational rehabilitation, or such rehabilitation must be court-ordered before an employee becomes eligible for temporary total disability benefits. Thach v. Quality Pork International, 253 Neb. 544, 570 N.W.2d 830 (1997).

* An employee, unless he or she is otherwise qualified to receive temporary total disability benefits, is entitled to such benefits only while undergoing rehabilitation which has been ordered by the compensation court. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990).

* An employee undergoing rehabilitation services is entitled to receive compensation for temporary disability in addition to other benefits under the act. Behrens v. Ken Corp., 191 Neb. 625, 216 N.W.2d 733 (1974).

* Claimant was entitled to maximum for total temporary disability. Myszkowski v. Wilson & Co., Inc., 155 Neb. 714, 53 N.W.2d 203 (1952).

* Award of temporary total disability and partial permanent disability was proper. Riggins v. Lincoln Tent & Awning Co., 143 Neb. 893, 11 N.W.2d 810 (1943).

* An employee is not prevented from receiving compensation for temporary total disability to perform the duties in which he is engaged at the time of an accident merely because he is then receiving an unrelated allowance for a permanent partial disability from a previous accident. Hansen v. Paxton & Vierling Iron Works, 138 Neb. 589, 293 N.W. 415 (1940).

* An award of temporary partial disability is authorized, even though permanent partial disability must also be computed for loss of specific member. Dennehy v. Lincoln Steel Works, 136 Neb. 269, 285 N.W. 590 (1939).

* Rule for determining compensation allowable for permanent partial loss of injured members, and temporary total disability, is stated. Poast v. Omaha Merchants Exp. & Trans. Co., 107 Neb. 516, 186 N.W. 540 (1922).

* Allowance may be made for temporary total disability in addition to allowance for permanent partial loss of use of finger. Ulaski v. Morris & Co., 106 Neb. 782, 184 N.W. 946 (1921).

3. Partial disability

* Earning power, as used in subsection (2) of this section, is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he or she is fitted. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).

* Worker's compensation benefits awarded under subsection (2) of this section are not measured by loss of bodily function, but by reduction in earning power or employability. An employee's disability as a basis for compensation under subsections (1) and (2) of this section is determined by the employee's diminution of employability or impairment of earning power or earning capacity and is not necessarily determined by a physician's evaluation and assessment of the employee's loss of bodily function. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).

* Compensation for permanent partial disability to the body as a whole is compensated on the basis of loss of earning capacity and employability rather than functional or medical loss. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).

* Where pain is sufficiently severe to prevent a normal function of a body member, a partial loss results within the purview of this section. Cain v. La Grange Steel Erectors, Inc., 195 Neb. 272, 237 N.W.2d 640 (1976).

* Workman sustained a permanent partial disability from organic heart disease and a cardiac arrest. Arlauskas v. Western Electric Co., 180 Neb. 790, 145 N.W.2d 925 (1966).

* Rule for computation of allowance for permanent partial disability applied. Gourley v. City of Grand Island, 168 Neb. 538, 96 N.W.2d 309 (1959).

* Injury to back justified award for permanent partial disability. Pittenger v. Safeway Stores, Inc., 166 Neb. 858, 91 N.W.2d 31 (1958).

* Permanent partial disability is compensated for by award based on difference between wages received at time of injury and earning power thereafter. Turner v. Beatrice Foods Co., 165 Neb. 338, 85 N.W.2d 721 (1957).

* Compensation for two-member permanent partial disability is determined by first applying percentage of disability to wage rate. Paulsen v. City of Lincoln, 156 Neb. 872, 58 N.W.2d 336 (1953).

* Rule for computation of award for temporary partial disability is stated. Peek v. Ayres Auto Supply, 155 Neb. 233, 51 N.W.2d 387 (1952).

* Extent of permanent disability is not finally determinable until employee is restored to health insofar as the nature of his injuries will permit. Allen v. Department of Roads & Irrigation, 149 Neb. 837, 32 N.W.2d 740 (1948).

* Where there is a permanent partial disability, employee is entitled to compensation for three hundred weeks from date of injury. Klement v. H. P. Lau Co., 138 Neb. 144, 292 N.W. 381 (1940).

* Where claimant has sustained loss of use of hand and loss of use of leg, he is entitled to such compensation under subdivision (1) as the extent of loss of the use of two members will bear to the total loss of use of such members. Fallis v. Vogel, 137 Neb. 598, 290 N.W. 461 (1940).

* Where injuries are not permanent in character, an award may be made for total disability followed by partial disability. Mutchie v. M. L. Rawlings Ice Co., 122 Neb. 297, 240 N.W. 267 (1932).

* Method of computing permanent partial disability is by applying percentage of disability to period of compensation. Lewis v. Allied Contractors, 118 Neb. 605, 225 N.W. 770 (1929).

* Where there is a permanent partial loss of hand and feet, compensation should be allowed under subdivision (1). Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928).

* Where employee suffered permanent partial disability to his legs, he was entitled to recover such proportion of compensation under subdivision (1) as the extent of his loss would bear to the total loss of such members. Schlesselman v. Trav. Ins. Co., 112 Neb. 332, 199 N.W. 498 (1924); Frost v. United States Fidelity & Guaranty Co., 109 Neb. 161, 190 N.W. 208 (1922).

* Where injury results in permanent partial loss of use of both arms, employee is entitled to recover such proportion of compensation allowed for total disability as the extent of the loss would bear to total loss of such members. Johnson v. David Cole Creamery Co., 109 Neb. 707, 192 N.W. 127 (1923).

* Compensation allowable for permanent partial disability is such proportion of entire loss as disability produced bears to whole. Hall v. Germantown State Bank, 105 Neb. 709, 181 N.W. 609 (1921).

* Where there are permanent injuries to two or more fingers, allowance should be made for permanent partial loss of hand. Updike Grain Co. v. Swanson, 103 Neb. 872, 174 N.W. 862 (1919).

* Under this section, when dealing with temporary partial disability, one cannot be earning wages at a similar job with the same employer and at the same time have suffered a 100-percent loss of earning capacity. Kam v. IBP, Inc., 12 Neb. App. 855, 686 N.W.2d 631 (2004).

* Subsection (2) of this section provides for the compensation court to reduce the period for which partial disability benefits are recoverable when total disability is followed by partial disability, but does not allow the court to make a similar reduction in benefits when partial disability is followed by total disability. Bennett v. J. C. Robinson Seed Co., 7 Neb. App. 525, 583 N.W.2d 370 (1998).

4. Permanent injury, specific classes

* Under this section, impairments to the body as a whole are compensated in terms of loss of earning power or capacity, but impairments of scheduled members are compensated on the basis of loss of physical function. The test for determining whether a disability is to a scheduled member or to the body as a whole is the location of the residual impairment, not the situs of the injury. Snyder v. IBP, Inc., 235 Neb. 319, 455 N.W.2d 157 (1990).

* The language concerning the partial loss of use of multiple members contained in subsection (3) of this section applies only where the losses of use are the consequence of injuries sustained in a single compensable accident. Rodriquez v. Prime Meat Processors, 228 Neb. 55, 421 N.W.2d 32 (1988).

* An employee suffering a schedule injury is entitled only to the compensation provided for in subsection (3) of this section, unless some unusual or extraordinary condition as to the other members or parts of the body develops as a result of the injury. Evans v. American Community Stores, 222 Neb. 538, 385 N.W.2d 91 (1986).

* An injury that results in the inability to produce tears to wash the eye is a scheduled injury to the eye. Doggett v. Brunswick Corp., 217 Neb. 166, 347 N.W.2d 877 (1984).

* When a ~schedule injury~ results in unusual or extraordinary conditions which affect other parts of the body, recovery is not limited to the amount specified in the schedule. In this case, where a fractured femur healed in such a way that a deformity developed which affected the hip and other parts of the body, the employee was entitled to benefits beyond those in the schedule. Scamperino v. Federal Envelope Co., 205 Neb. 508, 298 N.W.2d 477 (1980).

* Compensation under subdivisions (1) and (2) herein are not available for schedule injuries compensable under subdivision (3), except under unusual conditions. Broderson v. Federal Chemical Co., 199 Neb. 278, 258 N.W.2d 137 (1977).

* Compensation for disability resulting from a specific injury listed in subdivision (3) is limited to the amount specified. Guerin v. Insurance Co. of North America, 183 Neb. 30, 157 N.W.2d 779 (1968).

* In the absence of other extraordinary physical injury, compensation for loss of foot cannot exceed the amount specified in subdivision (3) of this section. Burrious v. North Platte Packing Co., 182 Neb. 122, 153 N.W.2d 353 (1967).

* Loss of fingers on both hands alone does not entitle employee to compensation for permanent total disability. Runyan v. State, 179 Neb. 371, 138 N.W.2d 484 (1965).

* The extent of permanent disability is not finally determinable until the employee is restored to good health insofar as the nature of his injuries will permit. Uzendoski v. City of Fullerton, 177 Neb. 779, 131 N.W.2d 193 (1964).

* Compensation under subdivision (3) includes the loss of binocular vision of the eye. Brewer v. Hilberg, 173 Neb. 863, 115 N.W.2d 437 (1962).

* Loss of teeth and cut on lip were not compensable under subdivision (3). Wengler v. Grosshans Lumber Co., 173 Neb. 839, 115 N.W.2d 415 (1962).

* Compensation was not limited to loss of use of leg where disability was also to back. Gilbert v. Metropolitan Utilities Dist., 156 Neb. 750, 57 N.W.2d 770 (1953).

* Method of computing award for permanent partial loss of use of both hands stated. Paulsen v. City of Lincoln, 156 Neb. 702, 57 N.W.2d 666 (1953).

* Combination of injuries to right and left wrists was sufficient to produce total disability. Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833 (1952).

* As it relates to an accidental injury to an eye, capable of industrial use and injured in industry, intent of section is to compensate for loss occasioned thereby to extent provided. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948).

* In a claim for compensation under subdivision (3), it is immaterial whether an industrial disability is present or not. Bronson v. City of Fremont, 143 Neb. 281, 9 N.W.2d 218 (1943).

* In providing compensation for loss of eye it was the legislative intent to indemnify the injured workman to the full extent of his industrial loss occasioned thereby. Bolen v. Buller, 143 Neb. 237, 9 N.W.2d 204 (1943).

* Where injury destroys the sight of an eye for industrial purposes, although with artificial means vision may be partially restored, an employee is entitled to compensation for loss of an eye. Otoe Food Products Co. v. Cruickshank, 141 Neb. 298, 3 N.W.2d 452 (1942).

* Award for loss of use of eye is not based upon the amount of vision which existed previous to the accident, but is a specific amount to compensate to the full extent the industrial loss sustained. Ames v. Sanitary District, 140 Neb. 879, 2 N.W.2d 530 (1942).

* Where fingers are injured and the disability resulting therefrom is normal, compensation cannot be awarded in addition to that provided in the statutory schedule for loss of use of fingers. Ottens v. Western Contracting Co., 139 Neb. 78, 296 N.W. 431 (1941).

* Where claimant does not suffer any industrial disability as the result of an accident, he is not entitled to recover for total disability under subdivision (1), but this does not prevent recovery of compensation under subdivision (3) where there is impairment of physiological functions. Schmidt v. City of Lincoln, 137 Neb. 546, 290 N.W. 250 (1940).

* Injury resulting in loss of use of hand is compensable exclusively under subdivision (3) providing schedule for specific injuries. Huff v. Omaha Cold Storage Co., 136 Neb. 907, 287 N.W. 764 (1939).

* The provisions of subdivision (3) are exclusive, and the employee may not recover for the loss of stereoscopic vision plus the loss of an eye, the stereoscopic vision being incidental to the loss. Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283 N.W. 220 (1939).

* Where effect of injury to finger only is usual and natural one, compensation cannot be allowed for loss of use of hand. Greseck v. Farmers Union Elevator Co., 123 Neb. 755, 243 N.W. 898 (1932).

* Claimant for compensation who has sustained injury to both legs and both hands, is entitled to recover such proportion of compensation allowed for total disability, as the extent of loss of the several members bears to the total loss of two such members. Radford v. Smith Bros., Inc., 123 Neb. 13, 241 N.W. 753 (1932).

* Loss of use of leg compensable as if leg had been removed. Schroeder v. Holt County, 113 Neb. 736, 204 N.W. 815 (1925).

* Compensation for the loss of an eye is confined exclusively to amount specified for loss of eye. Abel Constr. Co. v. Goodman, 105 Neb. 700, 181 N.W. 713 (1921).

* Compensation for permanent loss of use of leg is limited to amount specified for loss of leg. Hull v. United States Fidelity & Guaranty Co., 102 Neb. 246, 166 N.W. 628 (1918).

* Loss of toe does not entitle employee to compensation unless injury has impaired earning power. Epsten v. Hancock-Epsten Co., 101 Neb. 442, 163 N.W. 767 (1917).

* Where deep cut severed the tendons in wrist and severed the ulnar nerve, award for permanent loss of use of hand was justified. Miller v. Morris & Co., 101 Neb. 169, 162 N.W. 417 (1917).

* Under subsection (3) of this section, if a worker has a two-member injury, compensation shall be determined by the facts, and the existing or concurrent injury to another part of the body is one of these facts, even if that injury is not to a member as defined in that same subsection. Xayaseng v. Chief Indus., Inc., 7 Neb. App. 911, 586 N.W.2d 472 (1998).

5. Miscellaneous

* When a whole body injury is the result of a scheduled member injury, the member injury should be considered in the assessment of whole body impairment. An impermissible double recovery occurs if a separate award for a member injury is allowed in addition to an award for loss of earning capacity. Madlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005).

* When a worker sustains a scheduled member injury and a whole body injury in the same accident, the Nebraska Workers' Compensation Act does not prohibit the court from considering the impact of both injuries in assessing the loss of earning capacity. In making such an assessment, the court must determine whether the scheduled member injury adversely affects the worker such that the loss of earning capacity cannot be fairly and accurately assessed without considering the impact of the scheduled member injury upon the worker's employability. Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003).

* This section does not prohibit a worker from concurrently receiving statutory benefits for separate injuries arising out of separate accidents, so long as the combined payments do not exceed the maximum weekly rate allowed by section 48-121.01. Vega v. Iowa Beef Processors, 264 Neb. 282, 646 N.W.2d 643 (2002).

* As to hourly employees, subsection (4) of this section alters the computation of average weekly wage under section 48-126 only to the extent that it requires that a minimum of 40 hours per week be utilized in making the computation, which would result in part-time hourly employees with permanent disabilities being treated as though they had worked a 40-hour workweek. Ramsey v. State, 259 Neb. 176, 609 N.W.2d 18 (2000).

* Workers' compensation benefits are not measured by loss of bodily function, but by reduction in earning power or employability. Earning power is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he or she is engaged or for which he or she is fitted. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).

* ~Earning power,~ as used in subsection (2) of this section, is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he is engaged or for which he is fitted. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996).

* Pursuant to subsection (2) of this section, past wage history, even if the claimant's position with the employer was only temporary, is not considered. Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996).

* In determining the average weekly wage of a self-employed claimant, business expenses should be deducted, and the business expenses set forth on a claimant's tax return shall be presumed correct. Either party may rebut this presumption of correctness by proving by a preponderance of the evidence that certain business expenses distort the claimant's true rate of compensation at the time of the accident. Hull v. Aetna Ins. Co., 249 Neb. 125, 541 N.W.2d 631 (1996).

* Pursuant to subsection (5) of this section, a claimant is not entitled to temporary total disability benefits merely because he or she undergoes rehabilitation up to the time of maximum medical improvement, but, rather, is entitled to compensation for such reasonable period of time as is spent undergoing rehabilitation and he or she is therefore unable to work. Stansbury v. HEP, Inc., 248 Neb. 706, 539 N.W.2d 28 (1995).

* A self-employed claimant's average weekly wage under subsection (2) of this section shall be based upon the claimant's gross income less business expenses, i.e., net income. Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995).

* All calculations to be made under this section, and amendments thereto, have reference to wages, percentages, and results as of the time of injury. McGowan v. Lockwood Corp., 245 Neb. 138, 511 N.W.2d 118 (1994).

* Termination of payments for permanent partial disability was proper because plaintiff was not entitled to compensation in excess of the prescribed statutory maximum amount of weekly compensation. Foreman v. State, 240 Neb. 716, 483 N.W.2d 752 (1992).

* The mere fact that after an injury an employee receives or is offered his former wages or a larger sum does not necessarily preclude a recovery under workers' compensation. Schmid v. Nebraska Intergov. Risk Mgt. Assn., 239 Neb. 412, 476 N.W.2d 243 (1991).

* A given condition cannot at one time be both temporary and permanent. Yarns v. Leon Plastics, Inc., 237 Neb. 132, 464 N.W.2d 801 (1991).

* Disability is determined by diminution of employability or impairment of earning power or capacity, not necessarily by a physician's evaluation of loss of bodily function. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).

* In relation to ~total disability~ under subsection (1) of this section and ~disability partial in character~ under subsection (2) of this section, ~temporary~ and ~permanent~ refer to duration of disability; ~total~ and ~partial~ mean the degree of diminished employability or impaired earning capacity. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).

* Loss of earning capacity or earning power is relevant only to impairment of the body as a whole. Impairment to a scheduled member is measured on the basis of loss of physical function. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).

* The ability to communicate in English, if relevant, should be considered in determining the magnitude of a worker's disability. Mata v. Western Valley Packing, 236 Neb. 584, 462 N.W.2d 869 (1990).

* In making the calculations to determine a worker's benefits, an amendatory act may not be applied retroactively, and the statute as it existed at the time of injury governs. Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990).

* When prescribed as the only form of appropriate vocational rehabilitation for an injured employee, direct job placement is vocational rehabilitation within the meaning of subsection (5) of this section. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990).

* A plan of direct job placement, when prescribed as the only form of appropriate vocational rehabilitation for an injured employee, is vocational rehabilitation within the meaning of subsection (5) of this section. Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990).

* When a worker has reached maximum recovery, the remaining disability is permanent and such worker is no longer entitled to compensation for temporary disability. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).

* Injuries to the body as a whole are compensated under subdivisions (1) and (2) of this section, and refer to loss of employability and earning capacity, and not functional and medical loss alone. Kleiva v. Paradise Landscapes, 227 Neb. 80, 416 N.W.2d 21 (1987).

* Earning power, as used in subsection (2) of this provision, is measured by an evaluation of a worker's general eligiblity to procure and hold employment, the worker's capacity to perform the required tasks, and the worker's ability to earn wages in employment for which he or she is engaged or fitted. Thom v. Lutheran Medical Center, 226 Neb. 737, 414 N.W.2d 810 (1987).

* The Second Injury Fund may be considered a statutory employer for the purposes of payment of disability during rehabilitation. Parker v. St. Elizabeth Comm. Health Ctr., 226 Neb. 526, 412 N.W.2d 469 (1987).

* This section does not require that the 300-week period of compensation be reduced by the number of weeks during which compensation is paid under subsection (3). Parker v. St. Elizabeth Comm. Health Ctr., 226 Neb. 526, 412 N.W.2d 469 (1987).

* Disability is defined in terms of employability and earning capacity rather than in terms of loss of bodily function. McGee v. Panhandle Technical Sys., 223 Neb. 56, 387 N.W.2d 709 (1986).

* Impairments of the body as a whole are compensated in terms of loss of earning power or capacity rather than in terms of loss of physical function. Snyder v. IBP, Inc., 222 Neb. 534, 385 N.W.2d 424 (1986).

* Disability under the Nebraska Workmen's Compensation Act is defined in terms of employability and earning capacity rather than in terms of loss of bodily function. Minshall v. Plains Mfg. Co., 215 Neb. 881, 341 N.W.2d 906 (1983).

* The statutory scheme found herein is meant to compensate impairments of the body as a whole in terms of employability and loss of earning capacity, but to compensate impairments of scheduled members, rather, on the basis of loss of physical function. Nordby v. Gould, 213 Neb. 372, 329 N.W.2d 118 (1983).

* ~Earning power~, as used in this section, is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability to earn wages. Guerra v. Iowa Beef Processors, Inc., 211 Neb. 433, 318 N.W.2d 887 (1982).

* In the case of an occupational disease the ~date of the injury~, within the meaning of the Workmen's Compensation Act, is the date when the disability is first incurred. Therefore, the maximum compensable rate is that rate in effect on the ~date of the injury~. Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981).

* ~Earning power~, as used in this section, includes the ability to procure employment generally, to hold a job, and to perform the tasks of the work, as well as the ability to earn wages. Akins v. Happy Hour, Inc., 209 Neb. 236, 306 N.W.2d 914 (1981).

* This court can overturn the factfindings of the Workmen's Compensation Court that plaintiff's injury was to a member rather than to his body as a whole only if the finding is not supported by sufficient competent evidence. In this case the treating surgeon's testimony as to the site of the injury, possible future difficulties, disability, and resulting limitations, along with testimony by another medical expert, supported the finding that plaintiff suffered a schedule injury of the leg. Goers v. Bud Irons Excavating, 207 Neb. 579, 300 N.W.2d 29 (1980).

* An employee who suffered back pain approximately one-half hour after doing heavy lifting suffered an injury arising out of and in the course of her employment and is entitled to workmen's compensation. Disability is defined in terms of employability and earning capacity rather than bodily function. Thus, one who is in constant pain, unable to lift anything, and whose condition is aggravated by prolonged sitting or standing may be totally disabled. Wolfe v. American Community Stores, 205 Neb. 763, 290 N.W.2d 195 (1980).

* Disability under this section is defined in terms of employability, not bodily function. Craig v. American Community Stores, Inc., 205 Neb. 286, 287 N.W.2d 426 (1980).

* A compensable injury to the ball and socket of the hip joint, where the residual impairment is not limited to the leg, is not a schedule injury under subdivision (3), but a disability under subdivision (1) or (2) relating to earning capacity and employability. Jeffers v. Pappas Trucking, Inc., 198 Neb. 379, 253 N.W.2d 30 (1977).

* In a claim for compensation hereunder, it is immaterial whether an industrial disability is present or not. Sopher v. Nebraska P.P. Dist., 191 Neb. 402, 215 N.W.2d 92 (1974).

* Losses in bodily function are important only insofar as they relate to earning capacity and loss thereof. Shotwell v. Industrial Builders, Inc., 187 Neb. 320, 190 N.W.2d 624 (1971).

* This section discussed in connection with controversy over reason for delay in making payments. Marshall v. Columbus Steel Supply, 187 Neb. 102, 187 N.W.2d 607 (1971).

* Under Nebraska statute, any workmen's compensation policy is required to cover all of the employer's liability and all compensation awarded under the act. Neeman v. Otoe County, 186 Neb. 370, 183 N.W.2d 269 (1971).

* Disability under this section refers to loss of earning power rather than loss of bodily function; latter loss important only as it relates to earning capacity. Colgrove v. City of Wymore, 184 Neb. 712, 171 N.W.2d 639 (1969).

* Disability is determinable by a consideration of employability and earnings. Spangler v. Terry Carpenter, Inc., 177 Neb. 740, 131 N.W.2d 159 (1964).

* Disability under subdivisions (1) and (2) is defined in terms of employability and earning capacity rather than in terms of loss of bodily function. Wheeler v. Northwestern Metal Co., 175 Neb. 841, 124 N.W.2d 377 (1963).

* Disability under subdivisions (1) and (2) refers to loss of earning power rather than loss of bodily function. Thinnes v. Kearney Packing Co., 173 Neb. 123, 112 N.W.2d 732 (1962).

* Disability under first two subdivisions is defined in terms of employability and earning capacity. Pavel v. Hughes Brothers, 167 Neb. 727, 94 N.W.2d 492 (1959).

* Determination of amount of award is governed by law in force at time of accident. Chadd v. Western Cas. & Sur. Co., 166 Neb. 483, 89 N.W.2d 586 (1958).

* Earning power is not synonymous with wages, but includes eligibility to procure employment generally. Frederick v. Cargill, Inc., 165 Neb. 589, 86 N.W.2d 575 (1957).

* Disability under subdivisions (1) and (2) is measured in terms of employability and earning capacity rather than in terms of loss of bodily function. Miller v. Peterson, 165 Neb. 344, 85 N.W.2d 700 (1957).

* Earning power is not synonymous with wages. Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51 (1954).

* In a claim for compensation under subdivision (3) of this section, it is immaterial whether an industrial disability is present or not. Paulson v. Martin-Nebraska Co., 147 Neb. 1012, 26 N.W.2d 11 (1947).

* Action was properly brought under this section where evidence showed employee was regular part-time employee under contract of hire at forty cents per hour. Redfern v. Safeway Stores, Inc., 145 Neb. 288, 16 N.W.2d 196 (1944).

* Claimant was entitled to award as made in second original action, employer having ceased payment on prior award. Rexroat v. State, 142 Neb. 596, 7 N.W.2d 163 (1942).

* Compensation act provides for automatic reduction of compensation after certain periods of time to cover the situation of partial rehabilitation of employee who has received a permanent injury. Ludwickson v. Central States Electric Co., 142 Neb. 308, 6 N.W.2d 65 (1942).

* Amount paid under void settlement agreement by employer should be deducted from amount of award of compensation. Steward v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940).

* Fact that employee receives larger wages after injury than before does not necessarily preclude recovery of compensation. Micek v. Omaha Steel Works, 135 Neb. 449, 282 N.W. 262 (1938).

* Receipt of workmen's compensation did not bar city fireman from receiving fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

* In cases not covered by schedule, amount of award and degree of disability is for the court to determine. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938).

* An agreement to pay compensation must be approved by a compensation commissioner or compensation court or it is void, and part payment does not make such agreement actionable at common law. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).

* Parties are entitled to a final determination of the character of the disability, the full amount to be recovered, and the times when this amount shall be paid. Dymak v. Haskins Bros. & Co., 132 Neb. 308, 271 N.W. 860 (1937).

* Where compensation commissioner erred in computing compensation and allowed too much, employee is not entitled to attorney's fee on appeal to district court. Truka v. McDonald, 127 Neb. 780, 257 N.W. 232 (1934).

* Workman may receive concurrent compensation for two or more injuries provided combined amounts do not exceed fifteen dollars a week. Peterson v. Borden's Produce Co., 125 Neb. 404, 250 N.W. 240 (1933).

* For disability resulting from permanent injury, the compensation to be allowed is a percentum of the daily wages during a time specified. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928).

* ~Earning power,~ as used in subsection (2) of this section, is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which the worker is engaged or for which he or she is fitted. Weichel v. Store Kraft Mfg. Co., 10 Neb. App. 276, 634 N.W.2d 276 (2001).

* To compute an employee's statutory benefits pursuant to this section, the court should mathematically apply the statutory percentage set forth in this section to the difference between the injured employee's preinjury average weekly wage and the employee's postinjury average weekly wage. Haro v. Beef America, 9 Neb. App. 957, 622 N.W.2d 170 (2001).

* Subsection (4) of this section requires part-time output workers with permanent disabilities to be treated as though they worked a minimum of a 40-hour workweek or a 5-day workweek. Fordham v. West Lumber Co., 2 Neb. App. 716, 513 N.W.2d 52 (1994).






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